Criminal court in South Africa confirms charges for historical initial tracking of the crime against humanity of apartheid

[Gerhard Kemp is professor of criminal law at UWE Bristol, and extraordinary professor of public law at Stellenbosch University]

On Monday, April 14, 2025, the High Court in Johannesburg published an important decision on the historical first criminal persecution of two people for crime against the humanity of apartheid. The judgment is a significant victory for the public prosecutor, civil society and the victims of apartheid.

The decision concerns an application from the accused against the indictment to which they are to be charged. The two people, former members of the Africa Security Police Africa, are charged with murder (as a crime against humanity according to common law, alternatively murder of habitual law) and the crime against the humanity of apartheid according to habitual law. Both accused the involvement of the main nanes of murder as a crime against humanity and apartheid as a crime against humanity, since the law of the state was to set up a public prosecutor's office with regard to the law on the 1977 criminal proceedings (the alleged crimes were committed more than forty years ago). One of the defendants also rejected the right of the National Public Prosecutor's Office ('NPA') in this matter, since the NPA and the government of South Africa committed a “gross deficiency” by being involved in the NPA -NPA cases in the cases related to the truth and reconciliation commission (TRC '). The failure of the Post-Apartheid state to deal with the examination of these cases in the investigation of these cases was the focus of civil society for many years, and even the highest court of appeal was very critical of the interventions and delays.

The present comment focuses on the first objection and the effects of the decision of the court on the persecution of the crime of apartheid under the habitual law in South Africa and beyond.

The Cosas Four Case and the first indictment against apartheid

The judgment of the High Court is an important milestone in the domestic application of international criminal law, in particular with regard to the persecution of crimes under common law, in particular apartheid as a crime against humanity. The two accused people, Te Mfalapitsa and CS Rorich, were charged in 2021 because of the crimes that were allegedly committed in February 1982, as members of the anti-apartheid congress of South African students ('Cosas'). Three of the victims were killed and there was an attempt to kill the fourth victim. The victims became known as 'Cosas Four'. The two defendants are part of a cohort of potential defendants, which the NPA referred to by the Post-Apartheid-Trc. Part of the TRC mandate was to consider crimes and amnesty for these crimes. Some of the applications were unsuccessful, or in some cases, potential applicants did not have an amnesty. The TRC, which published its report more than twenty years ago, recommended the prosecution of people who are responsible for crimes from apartheid, including some of those who were denied the amnesty. Mfalapitsa and Rorich were two of those who unsuccessfully applied for amnesty. Their amnesty use affected the conspiracy to kidnap and kill members of Cosas. The TRC amnesty committee found that the death of three of the four Cosas was due to four members of the security police, including Mfalapitsa and Rorich. However, the committee was not convinced that it was a “direct or immediate relationship or a nexus between the crimes and the political goal that the applicants only pursued”. This “political goal” refers to the submission of the applicants who have behavior to protect and maintain the previous (apartheid) regime.

The time process and a restriction statute

Mfalapitsa and Rorich were charged in 2021, about forty years after the alleged crimes occurred on February 15, 1982. In South African criminal proceedings, the right to initiate criminal prosecution for a crime, apart from the exceptions presented in the criminal proceedings law, became after a time of two years in which the prescribed crime has become tangled, and the alleged crime than he was obliged. In the past, the exceptions belonged to the most serious crimes of habitual law (murder, rape, betrayal) and some legal crimes. The Criminal Procedure Act was later changed to accept the crimes in the implementation of the Rome Act of the International Criminal Court of 2002, namely genocide, crime against humanity and war crimes. The crime of apartheid is included as an exception, since apartheid is a crime against humanity in accordance with the implementation law (with the definition of the crime that is intended in the Rome statute of the ICC). The text of the revised criminal proceedings law stipulates that the exception for the crimes will apply, as intended in the implementation of the Rome Act of the International Criminal Court Act. The legal exception does not refer to crimes under common law. For this reason, the accused against the charges of murder as a crime against humanity and apartheid as a crime against humanity under habitual law. They were not accused under the implementation of the ICC Act (which in 2002 and without retrospecting or retrospective surgery came into force and thus came into force the crimes committed before 2002), but for the usual international law crimes of murder as crimes against humanity and aparthe as crimes against humanity. As we will see, both habitual crimes on § 232 of the constitution are directly included in South African law, which provides that the Habit Act in South Africa is the law, unless it contradicts the constitution or with a law of parliament.

Important parts of the judgment: Apartheid was a habit crime in 1982, and the prescription does not apply

The Court in the Cosas Four The case has found that South Africa has not ratified the convention of non -application of legal restrictions on war crimes and crimes against humanity. However, since the non -application ability of limitation period for serious crimes (including crimes against humanity) has become a peremptorical norm of international law, the court found that “South Africa is bound to this standard or not that has ratified the convention of legal restrictions or not” (para. 76) or not. The principles of the convention are also “part of the habit -population law” (paragraph 77). The court also referred to other sources (including the interpretation clauses in the constitution of South Africa) in order to conclude that the “crimes with which the defendant is accused are impressive” (paragraph 83). This includes the crime of apartheid according to common law. The long delay in law enforcement is not a defense and does not refrain from prosecution's law. It is important to remember that the problem before this dish is whether the state has the right to pursue criminal prosecution for crimes against humanity (murder and aparthe) 1982. As already mentioned, the legal basis for such a law enforcement is not the implementation of the ICC law (which only came into force in 2002, but no retrospective operation), but the usual international law that was assumed to be included in South African law. The Court of Justice could not have been clearer: the Habit Act offers the state an “independent legal basis” to pursue international crimes, and the crimes for which the accused are charged with murder as crimes against humanity and apartheid) were at the time when they were committed in 1982. “The decision of the court is therefore not only important for the question of the prescription of international crimes, but also in relation to the fundamental question of legality. Cosas Four Case) and that the court led to the conclusion that apartheid as a crime against humanity before the crimes committed in Casu, namely on February 15, 1982, the NPA was entitled to continue with such charges (paragraph 42). It is important that the court decided that even if the charges for murder as a crime against humanity and apartheid existed at the time of their Commission in South Africa (they obviously no defined crimes in the criminal law of apartheid in South Africa), but still crimes at the time of their alleged commission. The Court of Justice also pointed out that the habitual law even during the apartheid period, which ended in 1994, was an essential part of South African law (para. 43).

The importance of the judgment

No individual was ever convicted of the crime of apartheid. The law enforcement in the Cosas Four Fall still has to prove his case. The public prosecutor must demonstrate the elements of the crime of apartheid according to the Habitic Act, which includes the specific intentions, namely that the apartheid acts for the “purpose of the establishment and maintenance of dominance by a group of people by people about another group of people” and they have to be systematically suppressed. The judgment of the High Court in Johannesburg now enables the element of To check and apply the apartheid according to the habitual law in which the alleged crime was committed a few decades ago. possible, even plausible cases elsewhere in the world. For example, the transfer in the name of several states, including South Africa, the situation in Palestine to the public prosecutor of the ICC, draws special attention to the crimes in which a system of apartheid via Palestinians is involved. However, the lack of criminal accountability for this crime against humanity was the unfinished business of the transition from South Africa from apartheid to democracy. The decision in the Cosas Four case is really a milestone, not only for the project of international criminal justice in the broader sense, but also for the victims of apartheid in South Africa.